concurring on State’s petition for discretionary review.
There is a fundamental misconception underlying the reasoning of the court of appeals, viz:
“Further, the language in the statute giving the trial court jurisdiction for 180 days 'from the date the execution of the sentence actually begins’ means the date the sentence is pronounced.”
Smith v. State, 762 S.W.2d 235 (Tex.App.—Houston [1st] 1988), at 236-237. For me it is clear enough the Legislature neither provided nor intended that phrase be thus construed. Williamson v. State, 676 S.W.2d 428 (Tex.Cr.App.1984) (dissenting opinion, at 429-430).
“The ‘shock’ is being incarcerated in a penitentiary operated by TDC for a reasonable period of time, not being confined in a county jail run by the local sheriff. Tamez v. State, [620 S.W.2d 586], at 588-589, n. 3.”
Id., at 430.*
On that basis, I join the opinion of the Court.
The Houston Court seems to read our Tamez opinion to say the controlling date to begin calculating the jurisdictional period is the day sentence is pronounced, Smith, supra, at 236-237. It does not hold that.
Pointing out that notice of appeal was not given and "the appellant was confined in the Department of Corrections,” id., at 586, the opinion further observes that the subsequent effort to place defendant on probation came after expiration of the jurisdictional period, citing Adams v. State, 610 S.W.2d 780, 781 (Tex.Cr.App.1981) (imposition of sentence and confinement in TDC occurred same day) and Houlihan v. State, 579 S.W.2d 213, 219 (Tex.Cr.App.1979) (capias after mandate executed one day, defendant incarcerated in TDC the next). While it does regard the day sentence was imposed as "commencement of execution of the sentence," id., at 588, 589, for all we know from the opin*593ion Tamez was delivered to TDC and actually began his sentence that same day or the next day.
Moreover, the basic problem in Tamez is that just after the trial judge pronounced or imposed sentence and he also purported to cause the court to grant "shock probation” "before it had jurisdiction to do so." Tamez, at 587. Consequently, every action undertaken thereafter was flawed and ultimately set aside; the original sentence was reinstated with appropriate credits for time served, id., at 590.
The Court was not called on to determine and certainly did not decide the question now presented. However, we did address the mechanics in proper procedure "since a defendant granted ‘shock probation’ would be in the Department of Corrections under sentence when the motion for probation is considered." Id., n. 3, at 588-589.